Chief Justice Rehnquist: We will hear argument next in No. 85-2067, United States versus Jose Mendoza-Lopez and Angel Landeros-Quinones.

Mr. Wright, you may proceed whenever you are ready.

Mr. Wright: Mr. Chief Justice, and may it please the Court, the question presented is whether defendants prosecuted under 8 USC 1326 for reentering the United States following a deportation may collaterally attack the deportation proceeding in the criminal prosecution.

The two respondents were arrested by agents of the Immigration and Naturalization Service in October, 1984, in Nebraska.

At an immigration hearing in Denver with eleven other aliens they were given a list of free legal services and advised that the proceeding could be delayed if they wished to contact counsel.

They waived their right to counsel.

The immigration judge questioned each alien at the hearing.

Respondents both admitted that they were citizens of Mexico, that they had entered the United States unlawfully, and that they were subject to deportation.

The immigration judge advised both respondents that they were eligible to apply for suspension of deportation because they had been in this country more than seven years.

The judge explained that to qualify for suspension of deportation an applicant must show that he is of good moral character and that severe harm would be suffered by a member of the applicant's immediate family if he were deported.

The judge also stated that the respondents could have five days to apply for suspension of deportation.

Both respondents decided not to apply for suspension of deportation.

Unknown Speaker: Mr. Wright how effective is that information?

Doe the attorney general grant relief in many cases?

Mr. Wright: No, suspension of deportation is discretionary matter.

Unknown Speaker: Does he ever grant relief?

Mr. Wright: Yes, he does, most commonly if indeed a spouse of the alien is an American citizen.

The immigration judge ordered that both respondents be deported.

He asked whether they wanted to appeal his order, whether they wanted to accept his order, or whether they wanted to reserve decision.

Respondents both accepted the order and waved their right to appeal.

They were deported to Mexico two days later.

Unknown Speaker: Mr. Wright, what would have happened if one of them had said, yes, I think I would like to appeal?

Would they be deported nonetheless?

Or would they remain here pending the appeal?

Or what happens?

Mr. Wright: They would remain here pending appeal.

One of the respondents asked whether or not they would be released on bond pending the appeal, and was told that there would have to be a proceeding to determine what the amount of the bond should be.

Unknown Speaker: So the person might have to remain in custody pending the appeal?

Mr. Wright: That's right.

Unknown Speaker: Both respondents were given forms at the border stating that they would be subject to felony prosecution if they returned without obtaining the attorney general's permission.

Respondents--

--Both of these respondents, then, Mr. Wright, did in fact leave the United States?

Mr. Wright: Both did.

Six weeks later, however, both were arrested in Lincoln, Nebraska.

They were charged under Section 1326.

Unknown Speaker: From where had they been deported?

Mr. Wright: From El Paso, Texas, into Mexico.

Unknown Speaker: From El Paso.

Mr. Wright: Respondents sought to dismiss the indictments, contending that their deportation proceeding had been conducted unlawfully.

The District Court first considered whether respondents could collaterally attack their deportation proceeding, noting that the circuits are split on the issue and that this Court has not decided the question.

It decided that collateral attack is permitted at least to the extent that the court could review the deportation proceeding prior to trial.

The District Court then concluded that while the immigration judge had complied with the regulation requiring that he inform respondents that they were eligible to apply for suspension of deportation, that respondents were not in a position to evaluate intelligently that option.

The court also found that respondent's decisions not to appeal were not considered judgments.

On that basis, it concluded that the hearing was fundamentally unfair and dismissed the indictments.

A divided Court of Appeals affirmed.

Unknown Speaker: That was Judge Irbaum?

Mr. Wright: Yes, it was.

Unknown Speaker: And you have conceded that.

Mr. Wright: We have.

Unknown Speaker: That it was fundamentally unfair?

Mr. Wright: We have not raised... I am sorry, we haven't conceded, we have not raised the issue before this Court whether the hearing was conducted properly.

Unknown Speaker: You want us in our decision to assume it was fundamentally unfair.

Mr. Wright: That's correct.

The Court of Appeals sided with those circuits that hold

"that a material element of the offense prohibited by Section 1326 is a lawful deportation. "

The court found that this Court's decision in Lewis, where the Court held that a defendant prosecuted for being a felon in possession of a firearm may not collaterally attack their felony convictions is not analogous.

The Court of Appeals--

Unknown Speaker: What does it mean to assume that it is fundamentally unfair?

That is what troubles me.

Are you asking us to say that so long as somebody is deported no matter what the unfairness in the hearing was?

I mean, suppose two FBI agents just show up and say we are federal agents, we are going to deport you, and they have no authority whatever, and they will say, we will give you a hearing right now, and they give them a quick hearing, and they decide they are going to deport them.

They take them to the border and deport them.

Is that fundamental unfairness embraced in the kind of fundamental unfairness you want us to assume?

Mr. Wright: --No, in that case the elements of the crime prohibited by Section 1326 are reentry after a deportation.

Your facts do not amount to a deportation.

Unknown Speaker: What amounts to a deportation?

Mr. Wright: You have to go before an immigration judge, who signs an order of deportation ordering you to be deported.

You can always say in a prosecution under Section 1326 that I wasn't deported.

An element of the crime is that you are deported.

We are conceding that the deportation hearing was conducted improperly, the specific impropriety found here was that suspension of deportation was not adequately explained to the two respondents.

Unknown Speaker: Well, what if there was bias on the part of the administrative judge, the immigration judge?

I mean, he was a brother of the worst enemy of one of them, and it was clearly just a rump proceeding?

You would want us to assume that, too?

Any kind of procedural irregularity whatever in the deportation proceeding?

Mr. Wright: It is our position that the alien's options are to appeal to the Board of Immigration Appeals and then to the Court of Appeals or failing that, that they can apply to the attorney general for permission to reenter the United States following a deportation.

Unknown Speaker: But you wouldn't think that even a so-called gross miscarriage of justice in the course of a 1326 proceeding could be raised?

Mr. Wright: That's correct.

It is our position that it can't be raised there, that the correct approach is to raise it on appeal or to apply for permission to reenter.

Unknown Speaker: How about if the right to appeal was not known by the person deported and therefore the waiver of the appeal was invalid?

That can't be raised?

Mr. Wright: Of course that could be appealed, raised on appeal to the Board of Immigration Appeals.

Now, your particular example, of course, the alien wouldn't raise it because the hypothetical is that they weren't told of that.

It is our position that the alien may still not take the self-help remedy of re-entry, that the proper course is to apply for permission to reenter, and if the alien has an argument that would justify suspension of deportation, for example, he would have an argument that would justify permission to reenter, and that is the proper course.

Self-help--

Unknown Speaker: Do you take the position that there are absolutely no due process limitations to the enforcement of Section 1326?

Mr. Wright: --That's correct.

Unknown Speaker: Mr. Wright, there is certainly some authority that at least when you are talking about a District Court Judge, which I take it is every bit as sacrosanct as an immigration officer judgment, that if you would find actual bias on the part of the judge, that could be set aside after the judgment has become final.

Would you include these within the rubric of what you are talking about?

Mr. Wright: We don't think these should be raised in 1326.

These sorts of terrible hypotheticals we would think would be good reason for a Court of Appeals to reopen the deportation proceeding and order that a new proceeding be held.

Unknown Speaker: Or the Immigration Board of Appeals.

Mr. Wright: Certainly the Board of Immigration Appeals one would hope would do it before a Court of Appeals did it on the direct appeal.

Unknown Speaker: What direct appeal?

He has been... If you assume he has been done out of his right of appeal by this biased judge who never even informs him of his right of appeal, and then he is out of the country, there is really no way he can get the matter before the court any more unless the attorney general lets him back in in his grace, right?

Mr. Wright: Well, it is more difficult to appeal from a foreign country.

It is not impossible.

Unknown Speaker: You can do that?

Mr. Wright: The case of Mendez cited in our brief is an example where an alien did that and we would think that in these sort of terrible hypothetical situations that the proceeding ought to be reopened, but that is what we think the course ought to be, that the deportation proceeding ought to be reopened on appeal, or that permission to reenter should be sought from the attorney general, but that it shouldn't be raised following reentry in a criminal prosecution for unlawful reentry.

Unknown Speaker: As I understand the Court of Appeals opinion it was not based really on the finding that there were due process violations in the hearing.

They simply said you can collaterally attack this, and then went on to say, we think the collateral attack should be sustained here.

They didn't base it on any extreme denial of due process in the hearing.

They just say you can collaterally attack it for any number of reasons.

Isn't that correct?

That's correct, and while the District Court said fundamentally unfair here, the irregularity that he identified was failure to explain adequately the requirements of suspension of deportation.

Yes, and really that is all we have to decide here is whether on these facts that can be collaterally attacked.

Mr. Wright: Well, that is correct.

The logic of our position, as I think the questions have brought out, is that collateral attack simply isn't authorized in prosecutions under Section 1326, however.

Unknown Speaker: Mr. Wright, if the deportation had been at gunpoint you would still be making the same argument, wouldn't you?

Mr. Wright: Well, I am not sure whether you would have a deportation at gunpoint.

That would be the same sort of... if somebody just throws you across the border, that is not a deportation.

That can be raised.

Unknown Speaker: You require a hearing before an immigration judge of some sort?

Mr. Wright: Again, who signs an order of deportation.

Unknown Speaker: Who signs an order.

Mr. Wright: That is a deportation.

Unknown Speaker: Is it if it is so... I mean, maybe we are playing on words.

Say it is so terribly unfair, say the Judge is biased and he doesn't let any witnesses come in, and when he enters the order he pulls out a gun and takes the man across the border himself, so could it be so bad that it would be void, and therefore not a deportation?

When is it a deportation and when it is not?

I guess that is the issue.

Mr. Wright: Well, I would... well, I don't really think... that is certainly not the issue here.

If the Court wanted to preserve a gross miscarriage of justice exception as courts did before 1952, that certainly could be done.

Unknown Speaker: If you preserve that, then you have to ask the question whether this was a gross miscarriage of justice, and I think you don't want us to even be asking that.

Well, I am happy if you wanted to consider that, because clearly this was not a gross miscarriage of justice.

But you know, you just change the facts a little, you didn't tell them about appeal, they didn't have a translator there.

I mean, you can gradually move along the line, and do you get to a point where you might say that, well, this one is so bad we would admit it is "void" or it is not a "deportation" because it was so bad.

I am not quite sure what your--

Mr. Wright: Well, I wouldn't get to that point, and I think the virtues of a clean rule that you can't reenter and you can't raise the issue on reentry have those obvious virtues.

Unknown Speaker: Well, an official of the government said I am hereby deporting you, and I am signing a piece of paper that says you are deported, and then he takes him across.

Why isn't that a deportation?

Mr. Wright: I think a deportation order has to have some meaning and must be signed by an immigration--

Unknown Speaker: The procedure must be regular on its face or something like that?

The procedure must be regular on its face?

Mr. Wright: --I think there has to be a deportation order signed by an immigration judge.

Unknown Speaker: Well, after a proceeding?

Mr. Wright: I will settle for... well, there certainly ought to be a proceeding.

Unknown Speaker: But anyway the statute says how you deport somebody, doesn't it?

Mr. Wright: There are certainly regulations that cover that in some detail.

Unknown Speaker: And they have the force of law, I suppose, or what?

So you have to have an immigration judge and he has to sign a piece of paper.

Does he have to act in accordance with the outlined procedure?

Mr. Wright: Well, of course he does, and of course if he doesn't--

Unknown Speaker: What if he doesn't?

Mr. Wright: --If he doesn't, then you should appeal and the Board of Immigration Appeals should correct the error, and if the Board of Immigration Appeals doesn't correct the error, the Court of Appeals should.

Unknown Speaker: Well, I know, but if you haven't followed the procedures that the statute or the regulations say lead to a valid deportation, it isn't a deportation.

Mr. Wright: Well, that brings us to the question of whether Section 1326 has anything to do with valid deportation.

And it is our position that the language of the statute on its face says nothing about the lawfulness or the validity of the deportation.

It simply says a deportation.

We think that the absence of any requirement on the face of Section 1326 supports our argument, that is, the fact of the deportation and not its reliability that Congress intends to be at issue in a prosecution under Section 1326.

Unknown Speaker: What if an immigration officer simply picks up several illegal aliens in one of these sweeps or raids that they conduct occasionally and simply takes that person with that person's consent to Tlajuana or wherever else on the border.

Is that a deportation?

Mr. Wright: No, that is not a deportation.

Indeed, an alien who is granted voluntary departure after being brought before an immigration judge has not been deported and is not--

Unknown Speaker: So the deportation connotes a formal order directing you to leave the country.

Is that it?

Mr. Wright: --Followed by the government actually removing you from the country.

Unknown Speaker: Mr. Wright, isn't there still the question as to... at the original time as to whether they were adequately explained the special appeal that they could have made to the attorney general?

Isn't there still a question on that?

Mr. Wright: That hasn't been raised here.

Unknown Speaker: Well, I thought the trial judge in this case said so.

Mr. Wright: No, the trial judge here only found that the suspension of deportation rules were not adequately explained.

Unknown Speaker: That is what I am talking about.

That is what I said.

Mr. Wright: Yes, that is the issue, whether--

Unknown Speaker: That is still here as to whether he did adequately explain it?

Mr. Wright: --Right, although we did not raise that issue in our petition.

Unknown Speaker: But it is still here, isn't it?

Mr. Wright: It is still there.

Unknown Speaker: Mr. Wright, is it customary for the service to allow a voluntary departure if the illegal immigrant just says, you know, you got me, it is no use going through the hearing?

What do they usually... because otherwise you may be giving away the store here.

It would seem to me to pay every immigration who is caught to say don't try me, just let me go and I will depart quietly, and then he comes back in and you can't apply the--

Mr. Wright: Yes.

Well, the alien has to prove that he has either money or a ticket to leave the country.

And the immigration judge won't allow it if the alien has done that before.

In this case, for instance, there were 13 aliens.

Two of them asked for voluntary departure.

One was granted.

One was denied because he had been granted voluntary departure before, and while he had ultimately left, he had only done it after he had been sent about five letters saying your time has run out.

Unknown Speaker: I see, so you can get three bites, really.

That is, the first time you just don't contest the deportation, say I will leave quietly, right?

The second time you are caught you do contest it because they won't let you leave quietly and they deport you.

And then it is only the third time that the criminal statute would apply right?

Mr. Wright: Under those facts that is right I is not absolutely clear that an immigration judge would grant you voluntary departure the second time.

Unknown Speaker: Let me just be sure I understand one thing.

If he does grant voluntary departure, and the alien returns without permission, he has not violated 1326?

Mr. Wright: That's right.

He hasn't been deported.

Unknown Speaker: He hasn't been deported.

Mr. Wright: We think that Section 1326 is analogous to the federal statute at issue in Lewis and the federal statute that prohibits escape from federal custody.

In both of those cases it is the fact of the prior proceeding and not its reliability that is at issue in the prosecution either for possession of a firearm or for escape from federal custody, and the courts all agree that collateral attacks are not allowed in those circumstances.

Unknown Speaker: There is no penalty for illegally entering the United States unless you have been previously deported?

Mr. Wright: No.

Unknown Speaker: The first time you pick up an illegal alien all you can do is deport?

Mr. Wright: No, that is what almost always happens.

Eight USC 1325 makes it a misdemeanor to enter the United States unlawfully.

Unknown Speaker: I see.

I see.

Mr. Wright: And we think there is no question but that Congress can prohibit unlawful entry as it has.

Accordingly it seems to make it even more clear that Congress can make criminal entry into the United States under certain circumstances, and that is all that Congress has done here.

It has made criminal... it has made unlawful entry following a deportation a felony subject to two years imprisonment.

It seems plain to that Congress could make it unlawful to enter the United States and subject to a felony prosecution if you had polio.

That is really all we think that Congress has done here.

The legislative history of Section 1326 makes it even more clear that it is the fact of the deportation and not its reliability that is at issue.

The predecessor statute contained the phrase "in pursuance of the law".

When Congress enacted Section 1326 in 1952, it deleted that phrase from the statute.

Unknown Speaker: That would lead me to think that the FBI agent hypothetical would be covered.

I just don't know how... you are willing to read something into the statute but--

Mr. Wright: Well, I am sorry, I am--

Unknown Speaker: --Once you are willing to read something into it, why aren't you willing to read as much as the respondent would?

Mr. Wright: --I am willing to read content into deportation, reentry into the United States following a deportation.

Certainly if I grabbed someone and threw him out of the country, that is not a deportation, and it seems to me pretty simple to agree that an immigration judge ordering someone to be deported following by an actual deportation is a deportation, and that there is really not much to argue about on that.

Unknown Speaker: There is a lot to argue about.

Whether some other federal official acting under color of law purporting to be acting officially puts somebody on a boat, whether that is a deportation, I would think it could be called a deportation.

So you acknowledge that you are willing to read something into the statute.

You say no, it is not anything, it has to be pursuant to the legal formalities before an immigration law judge, so you are not really as virtuous in this thing not reading anything into the statute as you brief makes out.

It is just... the quarrel is really over just how much you are going to read into it.

That is all.

Mr. Wright: Well, I guess we give some content to the term deportation.

We don't think that it has to be a lawful deportation beyond those very simple requirements that I have stressed.

I wish I had said that in the brief.

I mentioned the fact that Congress deleted the phrase 1952.

The ACLU filed an amicus brief contending that although Congress deleted that phrase it wanted to carry forward case law authorizing collateral attack.

We showed in our reply brief that there was no such body of case law, but even if there were, deleting the language on which collateral attack would be based seems a most peculiar way to signal any intention to carry forward such a rule.

The contrary conclusion, that Congress wanted to make clear that collateral attacks were not allowed, seems to me to be a much more reasonable reading of Congress's action.

The dissenting judge in the Court of Appeals and the Second Circuit in its opinion in Potrella noted that Section 1105(a) makes it especially clear that collateral attack is not authorized.

None of the Courts of Appeals that have allowed collateral attack have considered this provision.

It was not clear under the 1952 Act whether deportations order could be appealed.

This Court held in 1955 that review was provided in the Courts of Appeals under the Administrative Procedure Act.

The lower courts approved other avenues for judicial review as well.

Congress responded in 1961 by enacting Section 1105(a), which provides that appeal from the Board of Immigration Appeals to the Courts of Appeals is the "sole and exclusive procedure" for obtaining judicial review.

That is an extraordinarily clear statement of Congress's intent.

And it ought to be given force here.

Furthermore, Congress provided two exceptions to its rule that appeal from the board to the Courts of Appeals is the sole and exclusive procedure, and one of those exceptions, Section 1105(a)(A)(6), which provides for pretrial review and criminal prosecutions for failure to depart from the United States following an order of deportation makes it clear that Congress was thinking about collateral attack in criminal prosecutions when it enacted Section 1105(a) and that it recognized that absent an exception Section 1105(a) would bar collateral attack on deportation proceedings in criminal prosecutions.

But Congress made no exception for prosecutions under Section 1326.

Therefore we think there is no such exception.

I would like to note briefly that we don't think that there is any reason to construe Section 1326 contrary to its plain language and the language of Section 1105(a) to avoid a serious constitutional question.

We think that those concerns were put to rest in Lewis, where the Court said that Congress could constitutionally focus on the fact of a prior proceeding and not its validity in denying a right to collateral attack.

This case is not meaningfully different from Lewis because the prior proceeding was administrative.

Collateral attack is only useful when the prior proceeding is flawed in some way, and a flawed judicial proceeding is no better than a flawed administrative proceeding, we don't think.

In short, the respondents were deported and pulled when they were... first they were given the right to appeal and they waived that right.

They were then given a form at the border telling them that they couldn't reenter the United States without obtaining the attorney general's permission, and that they would be subject to a felony prosecution if they did return.

We don't think that there is anything unfair about denying them the... about saying that they waived the right to appeal by waiving.

I would like to reserve the remainder of my time.

Unknown Speaker: Thank you, Mr. Wright.

We will hear now from you, Ms. Goudy.

Argument of Kathy Goudy

Mr. Goudy: Mr. Chief Justice and may it please the Court, I am here to argue that a deportation order which has not been previously reviewed in a judicial forum in any way can be looked at by a court before it becomes the predicate for a criminal conviction.

Such a review is permitted by the legislative history of Section 1326, the reentry after deportation statute, and it is also commensurate with the overall purpose of the Immigration and Nationalization Act.

It is important to allow some procedure or format for such a review to determine whether the prior adjudication was after a full and adequate hearing.

It is important to ensure that no gross miscarriage of justice occurred in that administrative hearing.

And the only way to ensure that is to allow some examination of whether the applicable constitutional, statutory, and regulatory procedures were followed by the administrative judge.

Unknown Speaker: Of course, the government says that clients like yours have an adequate opportunity to make that sort of a challenge if they just appeal from the order of the board or the immigration officer.

Mr. Goudy: In this particular case their rights of appeal ended within 48 hours after the hearing.

The District--

Unknown Speaker: Wasn't there a waiver, though?

What has that got to do with it?

Mr. Goudy: --There was a waiver during the hearing.

In this case the facts are pretty much intermeshed with the loss of their due process rights.

The transcript which was provided the judge was unofficial.

However, the tapes have been stipulated in of that hearing.

When you listen to them you will hear that it is not like they are having the same conversation at all.

The judge is saying one thing, the people are asking about bond.

They are not following up on their questions when they try to enforce their rights.

They don't--

Unknown Speaker: Is that denial of due process to misunderstand the conversation between a judge and a litigant?

Mr. Goudy: --In this case it was found to be.

Unknown Speaker: Well, do you say it is in this Court?

Mr. Goudy: When it goes to the extreme it did in this case, yes.

Unknown Speaker: So even though they are given a right to appeal, you say they have still got to have this right to collaterally attack.

Mr. Goudy: The have a right to collaterally attack to determine if it was a serious violation of due process.

Unknown Speaker: Even though they had the... they could have done that by appeal.

Mr. Goudy: Yes.

Unknown Speaker: I thought we took this case on the assumption that the defect below was in the failure to adequately explain the possibility of suspension by the attorney general of the deportation.

Mr. Goudy: That was one of the findings of the court in the main findings of a due process violation because of the serious harm that fell from that.

They should not have been placed over the border if--

Unknown Speaker: It was my understanding that their right to appeal had been explained, and that no appeal was taken by those deported, by the respondents here.

Mr. Goudy: --There is some language in the opinion that the right to appeal kind of got meshed in with the rest of the conversation that was going on.

They did waive their right to appeal.

Unknown Speaker: Yes.

Mr. Goudy: And when they were placed across the border, any future right to appeal ended at that point under Section 1105(a).

Unknown Speaker: Do you think that the failure to explain the right of... the possibility of suspension rises to the level of a gross miscarriage of justice as that term has been applied by this Court in earlier cases?

Mr. Goudy: In the facts of this case, because of the harm that was suffered by their failure to follow up on that suspension, yes, because they were... there is no further right to appeal that deportation.

To reenter the country they would have to get a visa.

They lost their meaningful time, what was it, seven years, to get the suspension of deportation.

Under the new Act they lost their chance for amnesty for the five years.

Because of the severity of the harm that occurred, yes, I do feel a gross miscarriage of justice occurred in their deportation hearing.

What was filed in the District Court was a request for a procedural review of some sort of the actual deportation hearing.

It was called alternatively a request for collateral attack, permission to bring up a collateral attack at the jury trial, and also a motion to suppress, in pursuant to Federal Rules of Criminal Procedure 12B.

The thrust behind it was that it is impossible to learn if there is a gross miscarriage of justice unless there is some forum established to look at the facts, and that the criminal conviction must rest upon a lawful and adequate deportation order.

The deportation in this order was found by the Court to be unreliable.

The immigration judge had acknowledged their eligibility for suspension of deportation and failed to act on their request.

Statute--

Unknown Speaker: I don't understand.

That doesn't mean that they weren't properly found to be illegal aliens.

It just means that they weren't advised of the possibility of their appealing for a discretionary waiver of their deportation, right?

It as entirely within the grace of the attorney general whether he would grant that, isn't it?

Mr. Goudy: --Yes, the attorney general acting, too, as agent of the Immigration Service, yes.

Unknown Speaker: I mean, it isn't as though they were entitled to be kept in the country.

They only thing that they weren't told about was the possibility of their asking the attorney general to let them stay in.

And that is what rendered it fundamentally unfair.

Mr. Goudy: Not necessarily entitled.

However, Congress has put in the suspension of deportation statute.

It is a law that allows you if you have been here seven years, even though you entered illegally, to remain here if you show you have been of good moral character and that it would cause severe harm to--

Unknown Speaker: No, it doesn't allow you to stay.

It allows the attorney general to allow you to stay if he wants to, doesn't it?

Mr. Goudy: --If the application were processed, that is correct.

Unknown Speaker: Yes.

So, I mean, that is what I am having trouble with.

Maybe there are some things that are fundamentally... that render a proceeding fundamentally unfair.

If something happened which caused the judge to find them deportable when they really weren't deportable, that might be something else, but here really your only claim is, he should have told them that there was another avenue of discretionary relief that they might have pursued.

Maybe he should have told them that, but I find it hard to say that that renders the deportation fundamentally unfair, and that is what you are arguing here.

You are arguing a due process violation.

Mr. Goudy: I am arguing that the District Court should be allowed to review the facts of the deportation to see if there is a fundamental fairness.

I am arguing whether they should be allowed to go back and look at the deportation at all.

Unknown Speaker: Well, you are arguing that and the fact that there was fundamental unfairness.

We wouldn't even have to reach the other question if we didn't see this to be fundamental unfairness.

Mr. Goudy: Right, the fundamental unfairness was found to be severe in that they wouldn't have gone across the border if they had been allowed to apply for the discretionary relief.

If they wouldn't have gone across the border an appeal could have been filed under 1105(a) under any of the formats available there.

If they wouldn't have gone across the border, they might have their green cards today and be legal residents of the United States.

And that was the substantial harm that was found that made that fundamentally unfair.

They were told they had a right when they tried to ask questions in this mass hearing where there were 12 other defendants.

Their questions weren't answered.

Unknown Speaker: I find that a queer use of language to say that the ability to ask for a favor is a right.

I mean, you can call it you have a right to ask for a favor.

Now, if you want to call that a right you can call it a right, I guess, but it doesn't sound like a right to me.

Mr. Goudy: Suspension of deportation is... it is a discretionary relief available if you can bring your evidence in sufficiently, but it is not a favor.

If there is enough substantial harm to an American citizen that is a relative to you, and if you have met jumped through all the hoops necessary, it is something that they should discretionarily give you.

It is something you have earned by seven years of good moral character in the United States, regardless--

Unknown Speaker: Reversing the attorney general for his denial of relief under that provision?

Mr. Goudy: --It is considered discretionary.

They are very hard... they would be very hard to win it.

I don't know the answer to that question.

The government's position appears to be that Section 1326 should be read as not reading in the word "lawful" into the word "deportation".

The language of 1326 when it uses the word "deportation" is ambiguous on its face.

Deportation as defined in 1252 means a lot of different things.

Deportation is the order to show case you are served with.

Deportation is the hearing you have in front of the judge in which suspension of deportation is a secondary part.

Deportation is the warrant that is signed after the hearing, and deportation is when you are finally placed across the border.

It is entirely conceivable and happens in many cases that a person is deported and still here in the United States for many years on appeal of that deportation order.

The legislative history of Section 1326 offers little credence to the government's position that Congress intended to allow any deportation, even an unlawful deportation, to be reviewed for its factual basis.

Unknown Speaker: What is your response, Ms. Goudy, to the government's argument that Congress took out the word 1326, modifying the word "deportation"?

Mr. Goudy: It is not a complete explanation.

Unknown Speaker: Yours isn't or theirs isn't?

Mr. Goudy: The government's isn't.

The complete explanation would be that there were about four statutes all involving some form of criminal penalty for reentry after deportation.

There was one for reentry of radicals, one for reentry of prostitutes, one for reentry of procurers, and one for kind of a general reentry statute.

And they all got merged.

There was a 1950 Senate report which was about the only discussion on this statute that is available in the legislative history, and in that--

Unknown Speaker: Why do you need legislative history to tell you what it means when the statute at one time reads "deportation in pursuance of law" and then when Congress gets through amending it it no longer reads "in pursuance of law"?

I would think that meaning is pretty clear without any legislative history.

Mr. Goudy: --For one thing, the statute that had 1326.

It is not as if three words were extracted and the statutes match otherwise.

Unknown Speaker: Well, it was considered by the House committee, as I recall, to be the predecessor of it because in explaining to the full... I think it was the House, the full House what the changes being made were.

They published that statute next to the new provision, so that committee at least thought that this was the one that the new provision was replacing.

Mr. Goudy: And the other statutes just sort of disappeared.

There is an earlier report where they agreed to merge it in the Senate, the four statutes, just to make it a more cohesive and enforceable Act of law.

Also, the "in pursuance of law"; all of them use different languages.

Furthermore, the "in pursuance of law" was not deleted.

It got moved to Section 1101(g), which also has some explanatory explanation about whether or not you are deported if you pay to go across the border or if the government pays your way across.

Rebuttal of Christopher J. Wright

Mr. Wright: It certainly was deleted from what was formerly 1326.

Rebuttal of Kathy Goudy

Mr. Goudy: It wasn't formerly 1326.

The reading of the statute doesn't match at all.

The language is inapplicable... it it not inapplicable.

The sense is the same in the section, but the language is so completely different.

There were a lot of words that were deleted from there.

There also is absolutely no legislative history of any kind to make it... to show that Congress explicitly meant to block any form of collateral attack, and because this is a criminal statute, an explicit intent to take away an individual's right has to be found in the legislative history before it can be interpreted.

Unknown Speaker: What case of ours do you rely on for that?

Mr. Goudy: I am referring in general to the rule of lenity.

I could obtain a case and submit it later if you wish.

Unknown Speaker: You say this is a part of the rule of lenity that if Congress is going to make a criminal statute more severe that it previously had, it has to explicitly find that it it taking away something from a defendant or explicitly say so?

Mr. Goudy: No, that is not what I meant.

What I meant was, is that if you are going to read negative connotations into a statute, there has to be some intent of Congress to show that those individual rights that are going to be taken away, the right to have some form of judicial review before being placed in jail, has to exist.

If there is question in how you can interpret a statute and it can't be resolved by looking at the legislative history, it should be resolved in favor of the defendants.

I would also... in conclusion what I want to state then is that what we asked for and was granted was some forum, some access to bring this hearing to the attention of a job, because how are you going to know if there was a gross miscarriage of justice unless you give a person some access in to have it reviewed?

A right with no enforcement provision into it is illusory.

Thank you.

Rebuttal of Christopher J. Wright

Chief Justice Rehnquist: Thank you, Ms. Goudy.

Mr. Wright, you have three minutes remaining.

Mr. Wright: Thank you.

I would like to make two points.

One is that the immigration judge here clearly explained to respondents that they had the right to appeal or to accept his ruling or to reserve judgment.

The District Court said that he thought to choose not to appeal was not a considered judgment, but the tape of the proceeding clearly shows that this was more than adequately explained.

I would also like to make the point that under the statute at issue in Lewis, a person would not be convicted of a crime if four FBI agents hauled him into a barn and held a trial, and everyone would agree that that is not a conviction.

The analogous sort of deportation--

Unknown Speaker: I imagine there are some people if you asked them whether an FBI agent points a gun at you and hauls you across the border, have you been deported, I think some people might say yes.

Mr. Wright: --We wouldn't.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Wright.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.